Oregon, New Mexico, and D.C. Laws Good for Two Mothers, Bad for Two Fathers
In many states, same-sex couples face difficulties when trying to obtain parental rights. Because birth certificates often demand the names of the biological mother and father, the female partner of the birth mother or male partner of the sperm donor are frequently left out. However, some states are beginning to pass laws aimed at correcting this inequity.
Washington D.C. recently enacted the Domestic Partnership Judicial Determination of Parentage Act of 2009, a law which states that the domestic partner of a woman who gives birth to a child through artificial insemination is automatically the legal parent of the child. New Mexico is poised to enact a similar law in 2010, and Oregon granted the same rights to lesbian parents in an appellate case, Shineovich v. Kemp. These new laws are tremendous victories for lesbian mothers who previously needed second parent adoption agreements and the consent of the biological father to obtain joint custody. Unfortunately, none of these laws address the needs of gay fathers.
In each of the three states, there is no provision of law designed to recognize the partner of a sperm donor. Complicating matters, many states, including Washington D.C., have made surrogacy illegal. Even in states that permit such agreements, many require that the surrogate not be financially compensated, and permit her to claim parental rights if she changes her mind following the birth of the child. Even once these factors are overcome, the male partner who did not donate his sperm is still required to go through a second parent adoption agreement, which can be costly and time-consuming. However, if a second parent adoption is not performed, the male partner will be left with no parental rights.
Even more concerning, given the infancy of laws recognizing the female partner of a birth mother, it is likely that those of Oregon, New Mexico, and D.C. will become the template for other states wishing to pass similar laws to the exclusion of gay fathers.
It is important that states pass laws recognizing the female partner of birth mothers, but it is also important that these laws contain provisions recognizing the male partner of birth fathers as well. Until then, male same-sex couples will continue to face expensive and lengthy legal gymnastics when trying to conceive a child.
Have a question, comment, or response? Share your thoughts.Surrogacy Agreements for Same-Sex Couples
For many same-sex couples who want a genetic relationship with their children, a surrogacy arrangement is necessary. Though mostly used in gay male relationships, surrogates are also sought by lesbian couples in which one or both partners are unable to carry a child. Unfortunately, the law surrounding surrogacy is murky and ill-defined, and this holds particularly true for same-sex couples.
Some states are uncomfortable upholding surrogacy agreements at all, and compare surrogacy to "baby selling" and invalidate contracts as a matter of public policy. Others are more amenable to traditional surrogacy, but balk when same-sex parents are involved. Traditionally, the gestational carrier of a child is viewed as the biological and legal mother, but some states have adopted a position in which intentional conception — when a surrogate is impregnated with a sperm and egg from the father and mother, as opposed to merely being fertilized by donor sperm — gives parental rights to the intended parents directly. Unfortunately, same-sex couples do not have this option, which makes surrogacy arrangements a bit is time-consuming, expensive, and potentially wrought with legal complications.
There are two routes to establishing the parenthood of a same-sex couple over a child born with the aid of a surrogate, and each have their own difficulties. The first involves receipt of a pre-birth judgment establishing the maternity or paternity of the genetic donor, and then engaging in a second parent adoption to create the maternity or paternity of the non-donor. This approach is more simple and makes use of existing legal structures without acrobatics from the court. Unfortunately, statutes barring same-sex couples from second parent adoption may impede this process. Further, there may be legal inequity between the donor and non-donor parents, which can fuel custody disputes in the event of a separation.
The second method involves establishing the parenthood of both intended parents before the birth of the child. This also requires a pre-birth judgement, and ensures that both parents are viewed as the legal parents from the beginning. Unfortunately, this method does not rely on pre-existing legal structures, and many jurisdictions have policies against establishing the parentage of two individuals to the exclusion of the birth mother. There may also be issues with the portability of judgements establishing parenthood of two non-birth parents, especially in jurisdictions where the two parents may not marry or enter into a civil union or domestic partnership.
There is no clear, established method for establishing maternity or paternity, and courts seem to have adopted that genetics, intent, or gestation are all relevant factors in considering ones parenthood. And because there are so many different routes, a judge with an agenda against gay parenting can easily set numerous roadblocks slowing or even halting the process.
Ultimately, the best route to take may be a combination of the above methods. A pre-birth judgement establishing both intended parents as the child's legal parents will help to stave off any initial complications that may arise from challenges, and will also help to cement the element of intent. Then, the non-biological parent should additionally engage in a second-parent adoption — in essence, adopting his or her own legal child — to ensure that the arrangement is durable and more portable. Each state has different laws as to how to construe surrogacy arrangements, same-sex parenthood, and second-parent adoptions, so it is vital to be comfortable with the laws of your jurisdiction before beginning this process. Couples seeking to use an out-of-state surrogate face even more difficulties, as they have to conform with the laws of both jurisdictions.
As complex and daunting as the law may seem at first glance, working through any potential problems before they arise is essential. A local attorney experienced with surrogacy agreements can help to point you in the right direction. Remember, any shortcuts at the initial stages can create massive holes and headaches later, so ensuring that every potential scenario is addressed before a child is brought in
Have a question, comment, or response? 4 people do.Why Second Parent Adoptions are Vital: How Same-Sex Couples Can Lose Their Kids
As same-sex couples win more legal rights and recognitions, it is important to remember that there are still many gaps in the law. Occasionally these gaps create legal battles that end with one or both partners losing rights they assumed they had. A New York case — Debra H. v. Janice R., ___ N.Y.S.2d ___, 2009 WL 943772 (N.Y. App. Div. 1 Dept. Apr. 9, 2009) — highlights this fact particularly well.
Two months prior to the birth of their child, Debra and Janice registered a domestic partnership in their home state of New York. A month later, the pair also entered into a civil union in Vermont. But two and a half years after the birth, the two women split up. Debra petitioned the court for custodial and visitation rights over the objections of her partner Janice, the child's birth mother. On October 9, 2008, the New York trial court found in favor of Debra, finding that she stood in loco parentis to the child. This means that although Debra was neither the child's biological mother nor an adoptive parent, the court was convinced that she acted sufficiently like a parent and deserved legal recognition.
However, on April 9, 2009, a New York appellate court reversed this decision and refused Debra any parental rights to the child she helped raise for two and a half years.
In the case of heterosexual married couples, a child born during the marriage is considered to be the biological child of both the husband and wife — even if there is evidence showing that the child is not biologically related to the husband. This same presumption does not apply to couples in a domestic partnership or civil union. Married same-sex couples should receive the same benefit of this parental presumption, though there has also not yet been a case on those facts. As a result, there is some legal uncertainty in this area. However, even without the force of this presumption, acting in loco parentis as Debra had done is typically sufficient to receive legal recognition.
The court's decision is based on a 1991 New York case — Matter of Alison D. v. Virginia M., 77 N.Y.2d 651 (N.Y. 1991) — which found that "a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights." While most states recognize that certain facts may make this automatic denial of standing unjust, New York still follows this rule. As a result, Debra is unable to receive legal rights including custody and visitation with her child.
The entire situation could have been avoided had Debra entered into a second parent adoption. Adopting your partner's child is an important step for gay and lesbian couples to take regardless of your state's position on marriage or civil unions. This area of law is particularly confusing for couples given that states have different rules about how to treat our relationships. Even more confusing is that within the same state, similarly situated same-sex and opposite-sex couples will be treated differently. One should never assume that their relationship will have the same legal footing as their heterosexual friends'.
Same-sex couples should consult with an attorney to ensure that all of their expected rights will be respected, especially if there is a child involved. Uncertainty in this area may never result in a problem, but discovering your lack of legal standing during a tremulous time can make an unpleasant situation even worse.
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